The SDFLA Blog is dedicated to providing news and notes regarding federal practice in the Southern District of Florida. The New Times calls the blog "the definitive source on South Florida's federal court system." All tips on court happenings are welcome and will remain anonymous. Please email David Markus at dmarkus@markuslaw.com

Sunday, September 04, 2016

Should Obama be doing even more with his commutation power?

PRESIDENT OBAMA began August by commuting the sentences of 214 federal inmates, and he ended the month by commuting
111 more. Generally the pardon and commutation power is used sparingly
and gets attention only when presidents use it to help cronies or former
staffers. Now it is being used to commute the sentences of people who
could not spare a dime to donate to a political campaign. This is a
historic milestone — but it is also not nearly enough.

Mr. Obama’s
August tally is the highest one-month presidential commutation total
ever — even including those last-minute flurries of commutations and
pardons presidents typically unleash during their final days in office.
In a single month, Mr. Obama doubled the number of sentences he has
shortened since taking office — to 673. His accelerating pace reflects
an initiative to use the commutation power with more ambition than any
modern president. His cumulative total is higher than that of the past
10 presidents combined.
The president has the power to shorten
sentences in order to compensate for inequities in the justice system,
an authority and responsibility that most neglect. Two years ago, the
Obama Justice Department announced a program
to encourage certain types of federal prisoners to petition for
clemency. Mr. Obama chose to target inmates who are serving long
sentences for nonviolent crimes, mostly drug-related, and who would be
sentenced more leniently under current rules. The White House points out
that more than a third of those the president has commuted were serving
life sentences, even though they were relatively low-level offenders.

@3:07 Pres. Obama could have advocated for legalization, or decriminalization, issued various executive orders, and pardon, pardon, pardon, there was a lot he could have done, but did not.

Yes, Obama pardoned some, but I mean big numbers, like 500,000 or a million. Real Republicans like William F Buckley advocated for legalization decades ago. See The War On Drugs is Lost, National Review, July 28, 2014,

http://www.nationalreview.com/article/383913/war-drugs-lost-nro-staff

"In the summer of 1995 WFB was asked by the New York Bar Association to make a statement to the panel of lawyers considering the drug question. He made the following statement:"

"We are speaking of a plague that consumes an estimated $75 billion per year of public money, exacts an estimated $70 billion a year from consumers, is responsible for nearly 50 per cent of the million Americans who are today in jail, occupies an estimated 50 per cent of the trial time of our judiciary, and takes the time of 400,000 policemen — yet a plague for which no cure is at hand, nor in prospect..."

"...it is outrageous to live in a society whose laws tolerate sending young people to life in prison because they grew, or distributed, a dozen ounces of marijuana. I would hope that the good offices of your vital profession would mobilize at least to protest such excesses of wartime zeal, the legal equivalent of a My Lai massacre. And perhaps proceed to recommend the legalization of the sale of most drugs, except to minors."

Also, he can only pardon those who seek a pardon. Can you cite a single case of a person with a drug conviction that he denied that you believe is worthy of a pardon?

Finally, you do know that the President cannot pardon a person convicted of a state crime? When you say he should have pardoned 1 million people - have there been 1 million people convicted of federal drug crimes since the war on drugs started?

@ 9:34 AM "What would he have decriminalized - heroin, cocaine or meth?"

Decriminalize all three, heroin, cocaine and meth. Legalize the sale of most drugs, except to minors, as William F. Buckley told the New York Bar Association in 1995. Pres. Obama could also have worked to overturn forfeiture laws, which are a blight on law enforcement and the justice system.

@ 9:34 AM "Also, he can only pardon those who seek a pardon."

Fine, send a human rights lawyer to ask each person so affected if they want a pardon. I believe most affected persons will want a pardon if they know about it, and are provided a lawyer who will advocate for them.

@ 9:34 AM "Can you cite a single case of a person with a drug conviction that he denied that you believe is worthy of a pardon?"

Troll.

@ 9:34 AM "Finally, you do know that the President cannot pardon a person convicted of a state crime?

Yes. The president cannot pardon someone for a state offense. Article II, Section 2 of the Constitution gives the president the "Power to Grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment."

Pres. Obama can request states pardon folks for state drug offenses. State governors can pardon state offenders.

@ 9:34 AM "When you say he should have pardoned 1 million people - have there been 1 million people convicted of federal drug crimes since the war on drugs started?"

In 1994, the New England Journal of Medicine reported that the "War on Drugs" resulted in the incarceration of one million Americans each year. See The War on Drugs -- A Peace Proposal

http://www.nejm.org/doi/full/10.1056/NEJM199402033300513

In 2008, the Washington Post reported that of 1.5 million Americans arrested each year for drug offenses, half a million would be incarcerated. In addition, one in five black Americans would spend time behind bars due to drug laws. See George F. Will quoting The Economist magazine in his Washington Post column.

"On May 13, 2009, Gil Kerlikowske—the Director of the Office of National Drug Control Policy (ONDCP)—signaled that the Obama administration did not plan to significantly alter drug enforcement policy, but also that the administration would not use the term "War on Drugs", because Kerlikowske considers the term to be "counter-productive""

"ONDCP's view is that "drug addiction is a disease that can be successfully prevented and treated... making drugs more available will make it harder to keep our communities healthy and safe"."

In my opinion communities will be safer and healthier without law enforcement engaged in a war against drug dealers, and all the collateral damage, from civilians killed in shoot-outs, to the decimation of civil rights and the rule of law.

All of us have a liberty interest to drink ourselves to death, marry an abusive spouse, or work a dangerous profession, like smokejumper. Whatever we do, on a long enough time line, the survival rate for everyone drops to zero.

The Bureau of Justice Statistics for Drugs and Crime Facts, Drug law violations, Pretrial, prosecution, and adjudication, tellingly hides the raw numbers, instead using statistics and percentages for 10 year old cases, see

The Times reported Fitts comments including a quote by Michael Parenti,

"One might better think of ours as a dual political system. First, there is the symbolic political system centered around electoral and representative activities including party conflicts, voter turnout, political personalities, public pronouncements, official role playing and certain ambiguous presentations of some public issues which bestir Presidents, governors, mayors and their respective legislatures. Then there is the substantive political system, involving multi-billion dollar contracts, tax write-off's, protections, rebates, grants, loss compensations, subsidies, leases, giveaways and the whole vast process of budgeting, legislating, advising, regulating, protecting and servicing major producer interest, now bending or ignoring the law on behalf of the powerful, now applying it with full punitive vigor against heretics and "troublemakers" The symbolic system is highly visible, taught in schools, dissected by academicians, gossiped about by newsmen. The substantive system is seldom heard of or accounted for."

Some of the links in the 2001 Times story no longer work, but these do,

The Southern District of Florida blog was started in 2005 by David Oscar Markus, who is a criminal trial and appellate lawyer in Miami, Florida. He frequently practices in federal courts around the country, including his hometown, the Southern District of Florida and the 11th Circuit Court of Appeals. He is a former law clerk to then-Chief Judge of the District, Edward B. Davis.